Currier v. Sutherland.

It may be that Mrs. Smith, after making an absolute conveyance, might retain her homestead right against everybody but her grantee (Crummen v. Bennet, 68 N. C. 494; Cox v. Wilder, 2 Dill. C. C. 45; Vogler v. Montgomery, 54 Mo. 577); as she might, after making a mortgage of it, against everybody but the mortgagee. It may be that the rights of creditors as against her might be controlled by her continued occupancy. To-day, while she occupies it, they might not be able to levy on the prop erty; to-morrow, after she had abandoned it, they might. A levy made while she was in the occupation, if she requested the officer to cause a homestead to be set out to her, might be void, and therefore incapable of being made good by her subsequent abandonment; if made after she had ceased to occupy, it might be valid. But we cannot say that the title of the plaintiff, if it was good at its inception, could be made bad by her subsequent purchase of and removal to a new homestead. That would be the same thing as to say that his title was good so long as he took nothing by his deed, but bad the moment his grantor permitted him to enter into possession.

Suppose this property to have been worth $1,000, and to have been conveyed without consideration in trust for the grantor: whether Mrs. Smith, though she had conveyed it by an absolute deed, might, so long as the grantee permitted her to remain in possession, have a homestead right of which no levying creditor could divest her, we need not now decide, but that the levying creditor would hold all but the homestead right against the grantee, the grantor, and the whole world, no one will deny; and so far as the grantee is concerned, it is not easy to tell what would prevent his holding that also. It seems that such a conveyance, being confessedly fraudulent in part, must be held to be fraudulent in toto; and if a grantee, without consideration of a homestead place worth $500 more than the amount exempted by law, can hold nothing against creditors, we look in vain for reasons why, if the entire value of the place was $500 or less, he should hold the whole.

Under the liberal statutes now in force, an insolvent debtor may easily have $1,000 or more invested in beasts of the plow, a cow, a hog, and a pig, tools of his occupation, a pew in a meeting-house, a sewing-machine, a library, furniture and other articles, which are exempted from attachment or levy. But this is that he may be permitted to use them. It is a privilege personal to him, and which may be waived by him. If, no longer needing them, he gives them away, how can the gift be sustained against creditors? Why should they not have the property as soon as he ceases to need it for the purposes for which the law protected it? That he commits a fraud upon them if he gives it away seems too plain

Currier v. Sutherland.

to require argument. If, instead of giving it away because he no longer needs it, he gives it away and purchases other similar property to supply its place, the absurdity of holding the gift, to be valid, though really no greater, becomes more obvious.

Suppose, after giving it away, he dies: suppose the gift is made in view of approaching death: shall the donee hold the property, or shall the administrator of the donor hold it for the benefit of his creditors? Manifestly there can be but one answer to this inquiry. If the estate is insolvent, it must go to the administrator. And, surely, it will not be contended that the donee may hold it absolutely against creditors during the life-time of the donor, but must lose it the moment he is dead. The absolute owner of property cannot be divested of his title by the death of a former owner. If the donee in such a case owns the property as against creditors while the donor lives, he certainly must own it as against the rights of creditors after he dies. And it is equally certain that the creditors of the donor might be defrauded by his giving it away in his life-time if the donee could hold it after his decease.

Although the owner of a homestead place worth no more than $500, if he make a seasonable application to have a homestead set off to him whenever a levy is about to be made, may hold it, including the rever sion, beyond the reach of his creditors during his life, it is plain that o might have a fraudulent intent to give it to a friend, to the exclusion of creditors, after his decease, and might actually defraud them if, though unable to give any title by making a will, he could give a good title by making an absolute deed.

In the case before us it would appear that Mrs. Smith, after making an absolute conveyance to the plaintiff, was permitted for fifteen years to occupy the premises as her homestead, and that the plaintiff never entered into possession until after one of her creditors had levied upon the property. If it was impossible for this conveyance to be fraudulent as to creditors, then, certainly, every insolvent owner of a homestead, in view of approaching death, or in view of death at some indefinite future time, though unable to devise it, can convey it without consideration, to be held in trust for his own use during his life, and at his death to go to the grantee, whether he dies within a day, or a year, or a quarter of a century.

The ingenious suggestion of the plaintiff's counsel, that, although per petual motion in mechanics yet remains undiscovered, an instance of perpetual motion in law will occur if the verdict in this case is sustained, upon the ground that if the defendant by virtue of Carpenter's levy can turn the plaintiff out of possession, Mrs. Smith by virtue of her homestead

Currier v. Sutherland.

right can then turn the defendant out, and the plaintiff by virtue of his deed from Mrs. Smith can then turn her out, and this may be repeated ad infinitum, presents a somewhat troublesome illustration. But whatever effect an absolute conveyance by Mrs. Smith, without any change of occupancy, may have had upon her homestead right as against creditors, it seems that, if the plaintiff has turned her out of possession by virtue of an absolute conveyance from her, she must be deemed to have abandoned the occupation of the premises as her homestead, and will not be entitled to turn the defendant out of possession after he had succeeded in turning the plaintiff out. We intend, however, to leave the question of abandonment, as it may hereafter arise between the defendant and Mrs. Smith, to be decided upon all the facts as they may then appear.

Numerous additional illustrations in support of the conclusion we have reached may be found in the argument of Mr. Carpenter upon this branch of the case. Several positions taken by him remain unanswered, and we have failed to discover how they can be answered. We deem it sufficient to refer to them, instead of occupying space by incorporating them in this opinion.

Judgment on the verdict.

NOTE. The majority of cases hold that a conveyance of exempt property cannot be charged as made in fraud of creditors for the reason that as the creditors had no right to have it applied in payment of their debts while in the possession of the debtor they could not be defrauded by its conveyance and could not follow or reach it in the hands of the alleged fraudulent purchaser. Bond v. Seymour, 1 Chand. 40; Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 id. 164; Winebrenner v. Weisinger, 3 Monr. 33; Dearman v. Deurman, 4 Ala. 521; Planters' Bank v. Henderson, 4 Humph. 75; Smith v. Allen, 39 Miss. 469; Legro v. Lord, 10 Me. 161; Lishy v. Perry, 6 Bush, 515; Vaughan v. Thompson, 17 Ill. 78; Wood v. Chambers, 20 Tex. 247; Foster v. McGregor, 11 Vt. 595; Bean v. Smith, 2 Mason, 252; Garrison v. Monaghan, 33 Penn. St. 232; see, also, Bump on Fraud. Conv. 263, 264; Freeman on Executions, § 138.

The latter author says: "The kinds of property which may be levied on as that of the fraudulent grantor embrace every thing which could have been subjected to execu tion in his hands if no conveyance had been made. In other words the laws against fraudulent conveyances are applicable to every species of property which the grantor's creditors could have lawfully had appropriated to the payment of their demands. But it is evident that creditors cannot be defrauded, hindered nor delayed by the transfer of property which neither at law nor in equity can be made to contribute to the satisfaction of their debts. Hence it is almost universally conceded that property which is by statute exempt from execution cannot be reached by creditors on the ground that it has been fraudulently transferred."

In Smyth on Homesteads and Exemptions, § 555, it is said: "Under the later decisions, it is a rule of law, now well established, that the debtor or head of a family may dispose of the exempt property in any way he may think proper; and a purchaser from him takes them free and may maintain an action against the sheriff for a subsequent levy and sale."

That a bankrupt may sell exempt property see McFarland v. Goodman, 13 Am. L Reg. 697; Schiltz v. Schatz, 2 Biss. 248.

Foote v. Merrill.

In Allen v. Cook, 26 Barb. 374, it was held that the homestead right was a purely personal one, and that it did not operate to destroy the lien of a judgment but only to suspend it, so that if the householder sold his homestead premises the right of exemption was gone and the premises liable in the hands of the grantee for all previous liens of judgments recovered against the grantor. See, also, to same effect, Smith v. Brackstt, 36 Barb. 571; Folsom v. Casli, 5 Minn. 333. But in Freeman on Executions, § 249 (a very careful and exhaustive treatise), it is said: "The lien of a judgment and of an execution is almost universally regarded as arising from the right to sell property thereander. And hence where the right of sale cannot be asserted, the existence of the lien must be denied. It would follow as a logical result, from the application of this general principle, that a judgment rendered after the creation and before the abandonment of a homestead cannot be a lien thereon, and as a result of the last proposition it must follow that a homestead may be sold or mortgaged, and that the title of the vendee or mortgagee will be paramount to that of a prior judgment-creditor." Citing the following cases: Bowman v. Norton, 16 Cal. 214; Marriner v. Smith, 27 id. 649; Deffeliz v. Pico, 46 id. 289; Englebrecht v. Shale, 47 id. 627; Green v. Marks, 25 Ill. 221; Hume v. Gossett, 43 id. 297; Bonnell v. Smith, 53 id. 377; Coe v. Smith, 47 id. 225; Lamb v. Shays, 14 Iowa, 567; Parker v. Dean, 45 Miss. 409; Bliss v. Clark, 39 IL 590; Fishback v. Lane, 36 id. 437.-REP.

FOOTE V. Merrill.

(54 N. H. 490.)

Damages-measure of in trespass quare clausum for cutting down and carrying away

trees.

In trespass quare clausum fregit, and for cutting down and carrying away trees, the measure of damages is the amount of injury which the plaintiff suffered from the whole trespass taken as a continuous act; the increased value of the trees, occasioned by the labor of the defendant in converting them into timber, is not to be included.

TRES

RESPASS, by Foote against Merrill, for breaking and entering the plaintiff's close and cutting down and carying away trees. The parties are owners of adjoining lots, and the question in dispute at the trial was, On which side of the dividing line between them were the trees cut? As to damages, the court instructed the jury that they might give the value of the timber after it was cut and made ready to be hauled off the land, to which the defendant excepted. The verdict was for the plaintiff, and the defendant moved for a new trial.

Carpenter (with whom was Putnam), for plaintiff, cited Martin v. Porter, 5 M. & W. 351; Wild v. Holt, 9 id. 672; Morgan v. Powell, 3 Q. B. 278.

Felton (with whom were H. Bingham and S. B. Page), for defendant, cited Sayer's Law of Damages, 1; Luther v. Winnisimmet Co., Cush.

1

Foote v. Merrill.

171; Cole v. Tucker, 9 Tex. 266; Wallace v. Goodall, 18 N. H. 456; Belnap v. Boston & Maine Railroad, 49 id. 358; Longfellow v. Quimby, 33 Me. 457.

HIBBARD, J. The gist of the action of trespass quare clausum fregit is the disturbance of the possession. Whatever is done after the breaking and entering is held to be but aggravation of damages. If the plaintiff had failed to prove the cutting of his trees, he might still have recovered in this action for the breach of his close (Brown v. Manter, 22 N. H. 468, 472); but if he had failed to prove the breach of his close, he could not have recovered for the taking and carrying away of his trees. Eames v. Prentice, 8 Cush. 337.

It may be assumed, although it is not stated in the case, that the court instructed the jury that the plaintiff was entitled (as he manifestly was) to recover for the injury, if any, which was done to his soil, as well as "the value of the timber after it was cut and made ready to be hauled off the land." It is to be inferred that the court permitted the plaintiff, although he had elected to bring trespass for breaking and entering his close and cutting down and carrying away his trees, to ignore the allegation and proof of cutting, and recover the damage done by breaking and entering the close and carrying away the trees, as if the cutting had been previously done by the plaintiff himself. The plaintiff has, therefore, in this form of action, recovered a verdict, which includes the value of the defendant's labor in cutting and trimming the trees. That this is not a just rule of damages is manifest although it may be probable that but a small proportion of the amount of the verdict in this case was given for the added labor. Had the defendant set fire to the plaintiff's trees and destroyed them, the measure of damages would have been their value as they stood on the land; and we cannot say that he justly ought to pay any more for cutting and removing than for destroying them, nor that the plaintiff justly ought to receive any more in one-case than in the other. If the plaintiff by pursuing a different remedy might have availed himself of the benefit of the defendant's labor, this may afford no reason for giving it to him in the form of action he has chosen to adopt.

The defendant having wrongfully cut and trimmed the plaintiff's trees, and it being impossible to separate the original property in them from the value subsequently added, it is unnecessary to cite authorities to show that the plaintiff, after they were cut and trimmed, remained the owner of the timber made from them, free from any lien or claim of the defendant for his labor, and that he might therefore have lawfully